2001 PLP 3176 (YLR)

The dispute relates to Flat No. 129, Adam Arcade, Bahadurabads Karachi. The flat belongs to the respondent Mrs. Jahan Ara, a resident of England. It was let out to the appellant through one Dr.Tehsin-ur Rehman, a witness of the respondent in the rent case.

2. On the grounds of default in payment of rent and personal bona fide requirement of the landlady, one Syed Altaf Hussain filed Rent Case No.756 of 1498, in the Court of Vth Senior Civil Judge and Rent Controller, Karachi East, for eviction of the appellant/tenant.

3. On the basis of evidence produced before the Rent Controller, she found that there was no default in payment of rent, but the rent case was allowed, by order, dated 17-4-2000, on an affirmative finding on the issue of personal bona fide need of the landlady. This order has been called in question, by the tenant, by way of this appeal. Thus, this issue alone is for decision in the appeal.

4. There is evidence of two witnesses on behalf of the landlady. They are attorney Altaf Hussain and Dr. Tehsin-ur-Rehman. Evidence of the tenant/appellant is on the other side.

5. The witnesses of the landlady, examined by the Rent Controller, have stated that the landlady is permanently living in England and she needs the flat in dispute for her stay, or for her son, whenever they visit Karachi. They also said that she has no other house to stay at Karachi.

6. The appellant/tenant stated, before the Rent Controller, that the landlady owns other flat also in the same building, and she wants to evict him in order to sell the flat in dispute.

7. Mr. Amin Lakhani, learned counsel for the appellant, contended that the landlady is not shifting to Karachi permanently and she comes to Karachi only for short stays. He submitted that she was at Karachi but herself did not file the rent case, nor she appeared before the Court for evidence.

8. Mr. Shahensbah Hussain, learned counsel for the respondent, submitted that the evidence of the attorney of the landlady and that of the other witness proves that personal bona fide requirement of the landlady. In respect of the evidentiary value of the evidence of the attorney of the landlady for proof of her bona fide requirement of the property, Mr. Shahenshah Hussain relied upon two decisions of the Supreme Court. They. were in the cases Muhammad Iqbal and another v. Mst. Saeeda Bano 1993 SCMR 1559 and Syed Abdul Rauf v. Abdul Sattar 1998 .SCMR 2525.

9. Both the above cited cases are not helpful to the respondent/landlady for distinguishable facts. In the first case, the landlady filed the rent case on the ground that she needed the property for the use of her son. The son was not examined but the attorney of the landlady was examined to prove the need of her son. This attorney was husband of the landlady.

10. The relevant observation in the second cited case, which has been referred to by the learned counsel for the respondent, was as reproduced below: "The Courts are meant for the citizens from where they seek justice and, therefore, to put a clog, or non suit them on account of non appearance even in genuine cases without any valid and cogent reasons, would be a dangerous proposition for administering justice with even hands between the parties. In our opinion, it will not be in the interest of justice to lay down that in every case where a party does not appear, or arranges his appearance through attorney, an adverse inference should be drawn against him. Such a rule, if laid down, would result into great hardship in cases where the parties, for instance, reside abroad, who will have to sue and defend themselves through their attorney. ".

11. Just before the above cited observation, the Supreme Court observed that every case is to be decided keeping in view its peculiar facts and circumstances and no hard and fast rule can be laid down.

12. In the present case, the facts are that Syed Altaf Hussain filed the rent case before the Rent Controller, on 21-11-1998, on the basis of a power of attorney purportedly executed at Karachi on 5-5-1998. This shows that the landlady was at Karachi in May, 1998 but she did not file a case. The rent application, or the power of attorney, does not disclose the relationship of attorney with the landlady. The rent application does not disclose that the landlady informed the attorney about her requirement of the flat.

13. In such circumstances, the evidence of the attorney may be treated as a corroborative evidence to support that of the landlady. It is the landlady herself who can say that she needs the flat for her personal use. The attorney can act on behalf of the person giving the power, for the purpose it is given, but he can neither become his mouth piece nor can reflect the intention of the person who gave the power. The intention of the landlady is not before the Court even as an averment in a case filed by her. The evidence of the attorney and that of the other witness, could only support the assertion of the landlady for proof, had it been before the Court. In these circumstances, the evidence produced before the Rent Controller cannot be deemed adequate to prove the issue about personal bona fide requirement. Appeal is, therefore, allowed and the rent case is dismissed. H.B.T./Z-24/K Appeal allowed.